In The News

Nazi-Stolen Painting to Remain at Museum After Federal Court Appeal

May 30, 2024
Texas Lawyer

The U.S. Court of Appeals for the Fifth Circuit, while admitting a Nazi-confiscated painting might have been “improperly” and “unjustifiably” given to the wrong party, nevertheless ruled it could not reverse a foreign government’s decision.

Nixon Peabody attorneys in Los Angeles, California, and Munsch Hardt Kopf & Harr attorneys in Houston prevailed again on appeal.

The Fifth Circuit affirmed a decision by a U.S. District Court for the Southern District of Texas to dismiss with prejudice claims brought by the heirs of Max Emden, whom Nazis forced to sell three paintings, including The Marketplace at Pirna, a circa 1764 painting by Bernardo Bellotto. The artist created the same painting twice, and the work is known in art parlance as a “By Bellotto.”

Nixon Peabody and Munsch Hardt defended the Museum of Fine Arts, Houston, the current party in possession of the painting.

Attorneys representing the museum did not respond to requests for comment.


In 1945, U.S. Army scholar soldiers known as the Monuments Men found Emden’s three paintings in an Austrian salt mine.

Six months later, they recovered another replica of The Marketplace at Pirna that was painted by an unknown artist and referred to as the “After Bellotto Pirna.”

Its rightful owner was German art dealer Hugo Moser.

According to the court records, the Goudstikker Gallery in Amsterdam made a claim for the After Bellotto Pirna, but the Monuments Men erroneously sent the By Bellotto instead.

Before the error could be remedied, Moser brought a conflicting claim.

The Dutch Art Property Foundation, no longer in existence, was the Netherland’s appointed arbiter for claims on recovered art and the Foundation shipped to Moser what it believed was the After Bellotto Pirna,—”which was, in actuality, Emden’s by Bellotto Pirna,” the opinion states.

It was not until 1949 that the Monuments Men realized the error and requested the Netherlands return the painting, but it was too late since it was no longer in the Foundation’s custody.

Legal Proceedings

In 2019, the Emdens’ claim was reviewed by the German Advisory Commission on the Return of Cultural Property Seized as a Result of Nazi Persecution, Especially Jewish Property.

The commission ruled the Nazis caused Emden’s financial hardship, forcing the sale of the paintings and concluded the Monuments Men erroneously restituted their By Bellotto Pirna to the Netherlands.

On the  basis of the German commission’s ruling, Juan Carlos Emden, Nicolas Emden, and Michel Emden filed suit against the Houston museum. They are represented by Dallas-based Platt Richmond attorneys Bill S. Richmond and Alen Samuel.

“We are evaluating the next steps in light of the opinion and expect to continue all efforts to restitute this artwork to the Emden family,” Bill Richmond said. “With the painting having gone from Hitler’s possession to now ultimately on display at the Museum of Fine Art Houston, the Dutch government simply does not have a procedure for relief. The U.S. court system is the proper venue for resolving this longstanding legal and moral issue.”

The trial court ruled against the Emdens, finding it was barred by “act of state doctrine,” which, as explained in the opinion prohibits American courts from sitting in judgment on the acts of another government acting within its own territory.

The Emdens had to overcome the doctrine and argued it does not apply for four reasons:

  1. The Dutch foundation believed it was restituting the After Bellotto Pirna.
  2. The Dutch foundation illegitimately, and therefore unofficially delivered the By Bellotto.
  3. U.S. and Dutch foreign policy favors restituting stolen art.
  4. The Dutch government’s acts did not occur exclusively within its territorial boundaries.

Oral argument was held April 2. The Fifth Circuit panel rejected all of the Emdens’ arguments.

First, U.S. caselaw precedent, including a 1990 U.S. Supreme Court decision, W.S. Kirkpatrick & Co. Inc., holds that the act of state doctrine applies when a court must decide the effect of official action by a foreign sovereign, the panel stated.

On the second argument, the court agreed with the museum, which asserted the Emdens’ claims “are conclusory and unsupported.”

“The Emdens’ pleadings lack sufficient support to assert plausibly that the Dutch government has renounced the (foundation),” the opinion states.

“The Dutch have not sought to disclaim the (foundation’s) actions regarding the By Bellotto Pirna nor proceeded through the Netherlands’s alternative recovery process for wrongly restituted art. We conclude that adjudicating the Emdens’ claim could create a negative impact on foreign relations, even if a limited one. And that is exactly what the act of state doctrine prohibits,” the opinion said.

In conclusion, the court said, “The most straightforward and charitable reading of the Emdens’ complaint inevitably requires a ruling by a U.S. court that the Dutch government invalidly sent Moser the By Bellotto Pirna. The Emdens may be right: The Monuments Men may have improperly sent the By Bellotto Pirna to the (foundation); the (foundation) may have unjustifiably sent Moser the By Bellotto Pirna even though he had a claim to only the After Bellotto Pirna.”

Also, the Houston museum may be violating the U.S. State Department’s “Washington Principles” on Nazi-confiscated art by refusing to return the painting to the Emdens, the court said.

The panel concluded, “But per the act of state doctrine, it is not our job to call into question the decisions of foreign nations.”